Hospitals Nationwide Challenge HHS Website Technology Policy

On behalf of 18 state hospital associations, Zuckerman Spaeder LLP has filed an amicus brief in support of a lawsuit challenging a federal government policy that prevents hospital websites from using IP address-based technologies. The Amici, which represent thousands of hospitals and health systems nationwide, say that the restriction has “enormous, adverse, real-world effects.”

Announced by the Office of Civil Rights at the U.S. Department of Health and Human Services (HHS) in December 2022, the policy deems the IP address of a visitor to a hospital’s website to be protected health information under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). As such, hospitals cannot use web features or technologies that require IP address data, even if the visitor provided no personal information and even if they had no prior relationship with the hospital – meaning that both current patients and those simply searching for information are affected. 

According to Amici, the HHS policy “threatens essential avenues for effectively conveying health information to members of the public and empowering them to learn about and access needed healthcare services.” Noting that, as of July 2023, HHS had issued approximately 130 warning letters to healthcare providers regarding the policy, the brief says that many of the Amici member hospitals “have disabled features of their websites that they previously relied on as necessary to help bring reliable health information to the general public…”

The Amici note that HHS has consistently emphasized the importance of ensuring that underserved communities have access to reliable health information. They go on to state that, “in order to serve as effective sources of reliable health information and to reach a broad audience outside of their existing patient base, hospitals must be empowered to use the best tools available to ensure that their websites are providing the right information to the right people, in a way that they can trust and act on.”

The brief articulates the negative impact of the rule on three key areas:

• Website analytics, which can be “a crucial tool for hospitals to better understand what populations they are reaching, what populations they could be reaching more effectively, and how to tailor their online content accordingly.”
• Map and location technologies, which “allow hospitals to provide better information about where healthcare services are available…”
• Embedded video, which is “an important tool to educate both patients and the general public about various medical procedures, symptoms of diseases, and physicians.”

The amicus brief was prepared by Zuckerman Spaeder partner William B. Schultz, who previously served as General Counsel at HHS and Deputy Commissioner for Policy at the U.S. Food and Drug Administration, and associate Ezra B. Marcus. 

The case is American Hospital Association et al. v. Melanie Fontes Rainer, in her official
capacity as Director of Office for Civil Rights, U.S. Department of Health & Human Services,
et al.; 4:23-cv-01110.